In re Adoption Xuan
In re Adoption Xuan
Opinion of the Court
Following a trial in the Juvenile Court, the judge found the father unfit to parent his son, Xuan, and terminated his parental rights. In addition, the judge denied the father's request for posttermination and postguardianship visitation or contact with the child. The father appeals, claiming that the judge abused his discretion by terminating the father's parental rights and declining to order posttermination and postguardianship contact. The child appeals from the order regarding posttermination and postguardianship contact and visitation.
1. Termination of parental rights. The father concedes that he was unfit at the time of trial. He argues, however, that it was not in the child's best interests to terminate his parental rights based on evidence of a "positive" bond between them and because the permanency plan of the Department of Children and Families (department) was for a permanent guardian rather than adoption. We disagree. "In deciding whether to terminate a parent's rights, a judge must determine whether there is clear and convincing evidence that the parent is unfit and, if the parent is unfit, whether the child's best interests will be served by terminating the legal relation between parent and child." Adoption of Ilona,
The father maintains that because the department's permanency plan for the child is a permanent guardianship and not adoption, termination of his parental rights was an abuse of discretion. This argument fails because " G. L. c. 119, § 26 (4), provides that a judge 'may enter an order to dispense with the need for consent of any person named in [ G. L. c. 210, § 2 ], to the adoption, custody, guardianship or other disposition of the child ... upon a finding that the child is in need of care and protection ... and that the best interests of the child will be served by such an order.' " Adoption of Nancy,
The father also claims that termination was not in the child's best interests because there is a loving bond between the father and child, and he made efforts to "improve his personal and parental deficiencies." However, a bond does not preclude termination of parental rights; it is but one factor to weigh. See Adoption of Bianca,
The judge considered the requisite factors under G. L. c. 210, § 3 (c ), and found that factors (ii), (iii), (v), (vi), (vii), (viii), and (xii) were applicable. The judge's findings demonstrated a link between the father's history of drug and alcohol use and his continuing patterns of parental neglect of the child. The father also has a history of domestic violence with the mother. He admitted to being the aggressor in these incidents, some of which occurred in the child's presence. In addition, the father has a history of domestic violence in a previous relationship. He has a long and varied criminal record dating back to 2000, with charges including, among others, assault and battery, breaking and entering, possession of a class E controlled substance, threats, and various motor vehicle offenses.
Finally, the father did not sufficiently engage with his service plan tasks -- his progress was both incomplete and inconsistent.
In sum, "[a]lthough it would be better practice specifically to state the reasons that termination is in the child's best interest, such specificity is not required." Adoption of Nancy,
2. Posttermination and postguardianship contact. The father and the child both claim that the judge abused his discretion in declining to order some type of posttermination and postguardianship visitation or contact. Although we express no opinion on the ultimate question whether contact or visitation would be in the child's best interests, we agree that the findings relating to such contact are not sufficient.
Once it is established that a parent is unfit, any visitation or contact order is left to the sound discretion of the trial judge. See Adoption of John,
Here, the judge expressly denied posttermination and postguardianship contact or visitation, concluding that it was "not in the subject child's best interest based on the Department's recommendation." However, the only mention of the department's view on visitation or contact was in closing argument at trial, where the attorney for the department stated that "[t]he Department is looking for termination of parental rights of [the father] .... No post-termination contact/post-guardianship contact, Judge. No phone calls." Otherwise, there is no evidence of a department recommendation in either the department's permanency plan or in the social worker's testimony at the termination trial.
The decree terminating father's parental rights is affirmed. The order declining to provide posttermination and postguardianship visitation or contact is vacated, and the matter is remanded for further consideration and findings in accordance with this memorandum and order.
So ordered.
Affirmed in part; vacated in part and remanded.
The mother stipulated to the termination of her parental rights and entered into an open guardianship agreement. She is not a party to this appeal.
The father did complete some work toward goals that were part of his service plan during his incarceration, including a fathers' nurturing program and a stress management program. However, the father did not provide proof of attendance sheets of AA meetings in 2017 to the department.
At oral argument the department conceded that its recommendation was not tied to anything in the record.
The father visited the child prior to his 2016 incarceration and while incarcerated spoke with the child by telephone every Sunday. This contact occurred while the child was placed with the paternal uncle and his family. After his release, the father visited the child four times between February and April, 2017, when he was incarcerated again on a probation violation. It is unclear from the record whether the father missed any scheduled visits from February to his April, 2017, incarceration. From April, 2017, forward, the father did not visit with the child nor did he have telephone contact with him. It is unclear from the record whether telephone calls were offered or available during this latter incarceration as they were previously. The circumstances of the child's placement had changed from the paternal uncle's home to that of the guardian.
This type of contact was provided for (in addition to visitation and telephone calls) in the guardianship agreement the mother signed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.